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Re S (Parental Alienation: Cult: Transfer of Primary Care) [2020] EWHC 1940 (Fam)

Transfer of residence of a 9 year old to father’s care after mother failed to adequately disengage from the cult of Universal Medicine. There is to be no direct or indirect contact between mother and child over the Summer, and the reintroduction of contact between mother and child is to be decided by the father in consultation with the ISW.

Mr Justice Williams
On 29 April 2020 the Court of Appeal gave judgment on the father's appeal against the decision of HHJ Meston QC by which he refused to order a transfer of the care of the child to the applicant father Re S (Parental Alienation: Cult) [2020] EWCA Civ 568. The Court of Appeal allowed the appeal and remitted the case to the President of the Family Division. As a result of the President's hospitalisation the case was reallocated to Williams J who hear evidence from both parties, the psychotherapist instructed by the mother, Mr Sydney and from ISW , Ms Ware.

Universal Medicine
Universal Medicine is a belief system founded in Australia in 1999 by Serge Benhayon with teachings called "The Way of the Livingness" covering every aspect of human activity. Adherents are said to lose the capacity to question or scrutinise what they are taught; anyone who leaves is warned of curses they will suffer and told they will lose all access to healing and salvation.

In 2018 the Supreme Court of New South Wales found that Universal Medicine was a socially harmful cult and Benhayon a sexually predatory charlatan who assaulted female students and had an indecent interest in children as young as ten. (Benhayon v Rockett (No 8) 2019 NSWSC 169.)

The parameters which the Court of Appeal set for the remitted hearing were narrow. This reconsideration is based on the factual foundations contained in the judgments of the first instance judge HHJ Meston QC and the Court of Appeal: That the mother's adherence to Universal Medicine was harmful to the child, and this was causing alienation from the father. The Court did not interfere with any aspect of HHJ Meston's fact-finding but considered that there were errors in his evaluation and balancing of the risks. He was right to find the child at immediate risk of harm but it was difficult to know why he thought the mother was likely to modify her thinking about Universal Medicine. 

The mother was given a final opportunity to disassociate herself from Universal Medicine, start intensive therapy and reverse the process of alienation and warned without such wholesale transformation the court at the future hearing is likely to find it necessary to transfer care to the child's father. Mother stated she would do whatever was necessary to remain the child's primary carer. 

The mother's immediate response to the draft judgment circulated by the Court of Appeal was to seek permission to appeal to the Supreme Court, in her grounds the mother denied alienation and denied the difficulties between the child and father were related to Universal Medicine. The Court of Appeal refused permission and the mother did not renew this application. The mother stated in her evidence that she has not seen the Grounds that were submitted- Williams J did not accept this.

Hearing before Williams J
Williams J was therefore concerned predominantly with the issues of ongoing risk- the capability of the parents and the effect of change, revolving mainly around the mother's disassociation from Universal Medicine, and what she had done to reverse the process of alienation.

The mother represented herself during the hearing, her direct access barrister (Ms Baker) was unwell, and the judge refused an adjournment applied for by the mother. The judge allowed further time for the mother during the hearing and Ms Baker submitted written submissions which supplemented the oral closing submissions the mother had made. 

The child was not separately represented as an ISW, Helena Ware, had been appointed and therefore the Court of Appeal considered a 16.4 Guardian was not necessary. 

The father stated that the mother may have stopped associating with Universal Medicine individuals, but this was the extent of the disassociation and her attitudes to the father and her acceptance of the effect on the child of her adherence to Universal Medicine demonstrated that she had not altered her attitude substantially, if at all. The child was in fact becoming more alienated from the father, not less. The only solution was for the child to live with him and that any short term harm would be more than balanced by the medium to long-term benefits of the change. 

The written submissions of Ms Baker contended:

a. That the situation was in fact improving and the court is not in a position to change the child's residence because there is a deficit in information, and what it does have lacks credibility:

i. The court does not have the child's view as the ISW declined to see her and has not seen her for months.

ii. The change in recommendation by Ms Ware was therefore without basis, and no credible welfare professional could make such a recommendation without seeing the child.

iii. The evidence of Mr Sydney (psychotherapist instructed by M) was to be preferred as he is better qualified. Mr Sydney concludes the current arrangement should continue.

iv. A proper application of the welfare checklist demonstrates the harm in transferring primary care at this stage outweighs the benefits. Instead therapy and mediation is the appropriate solution to improve the relationship between father and child.

b. The father intends to move to Dorset and this will remove the child from her school which was not contemplated by the Court of Appeal, as the father specifically referred to her continuing at the same school.

c. Removing the child would put her in the immediate and serious physical danger and irreparable emotional damage.

i. There is a risk the child will run away whether in London or in Dorset.

d. The hearing was unfair and a violation of Article ECHR including cross examination of the mother that amounted to bullying.

i. The imbalance between the mother representing herself and the father being represented by leading and junior counsel was unfair.

ii. The cross examination of the mother about her historic involvement in Universal Medicine served no purpose save to bully and diminish the mother.

F's evidence stated that although the child had begun to come to his home and stay the night, the relationships was as bad as it ever had been. There were good times, but the child did not respect him as a parent and continued to look to her mother for what she was allowed to do and not to do. The child was sometimes violent towards her father and continued to exhibit behaviour consistent with UM beliefs. M admitted in her evidence that she had not spoken to the child about disassociating from UM.

F accepted that a transfer of residence would be devastating for the child but felt there was no other option. The father did not have a plan on how residence would be transferred which concerned the judge but ultimately the judge found him a child-focused and sensitive parent.

Ms Ware described it as being difficult to discern where the mother ended and the child began at times and the judge having seen both the mother's openly emotional nature and her description of how closely she aligns herself with the child's feelings and vice versa concluded this is an apt description.

The judge found that the mother had disassociated from individuals involved in UM, but not the beliefs or practices and did not accept the criticism of the organization. When asked about the previous court's findings of harm, mother suggested she could not recall what the findings were and did not engage with questions about her attitude to them now and the implications for the future. Mother admitted to making mistakes in the past, but was unable to articulate what those mistakes were.

When asked by the judge how she had attempted to reverse the alienation, she said she had done nothing but wanted advice on how she should approach it. Williams J stated there is almost no engagement with the harm that the child has been caused and the process that led to that harm, and therefore no engagement with the damaging nature and beliefs of UM. The judge accepted that she has many qualities as a mother but that they exist in the shadow of the significant limitation on her capability as a parent arising from her adherence to UM.

The ISW, Helena Ware, concluded at the court of first instance that if the mother was unable to make the break from UM in any effective way that the child should move to live with the father. Since that hearing, Ms Ware has filed 2 further reports, gave oral evidence and spoke with M, F and Mr Sydney. Ms Ware did not speak to the child again as she thought this would cause further distress but did talk to the school who felt the child had become increasingly stressed and anxious over the last year.

Ms Ware thought mother's engagement with Mr Sydney was of assistance but it focused on parenting issues and the mother's relationship with the father. Ms Ware gave oral evidence that the child was becoming increasingly alienated form the father and the mother's position was largely unchanged from last year. Ms Ware considered that despite the considerable short-term distress that would be caused by moving the child to the mother's care, her medium to long term required it. There should be an extended summer break away from London at the home of the paternal grandmother in Dorest. During this time there should no direct or indirect contact with the mother, as this would undermine any progress made. Ms Ware was prepared to advise the family as to how the relationship thereafter developed.

Mr Sydney was instructed to assess and report on the mother's disassociation from UM. Mr Sydney met with the mother 5 times over Zoom, and spoke with Ms Ware. The only documents he had were 2 reports completed by Ms Ware in October 2019. He did not have the previous judgments which inevitably led to significant gaps in his report and the assessment of the mother's understanding of risk and harm.

Following a directions hearing before William J, Mr Sydney was provided with the two previous judgments, the parties' witness statements and Ms Ware's addendum report. Two further Zoom meetings took place but the particular findings of the Court of Appeal and HHJ Meston QC were not addressed. The Judge found it difficult then to understand how Mr Sydney concluded that the mother acknowledged her previous engagement with UM have caused distress to her daughter and the father. Mr Sydney gave evidence stating that the mother was able to acknowledge the flaws of UM and that Serge Benhayon was a sexual predator- this is the complete opposite of the oral evidence the mother gave, and the judge was 'unimpressed' by the nature of the work undertaken by Mr Sydney and doubtful of its impact.

The judge found the mother's motivation to leave UM was the potential loss of her child, rather than any realization of the harmful consequences of UM. Her disassociation was superficial and this caused concern over what may happen once proceedings were concluded. 

Conclusion

The judge concluded that 'I am therefore satisfied that the distress that the child will feel as a result of the separation from her mother and from a period of no contact will be short-term and will not have medium to long-term consequences of a magnitude which in any way approaches the magnitude of the consequences of leaving her in the current position.'

The intention is that after the summer break, the child will return to London and to her school, this may need to be reviewed depending on the mother and child's response.

William J comments that the mother has not come close to achieving the sort of break identified by the Court of Appeal, to showing a wholesale transformation in her position where with a full heart she leaves UM. They are so limited and tenuous that at this stage, should the child remain in mother's care, in the short to medium term the child's relationship with the father would be terminated.

The child will live with the father and will spend such time with her mother as the father may agree in consultation with Ms Ware. The judge envisaged that initially contact with the mother will be supervised and the father and Ms Ware will have to consider whether the child has made the emotional leap to acceptance that her home is be with her father for the future.

The judge stated he would write the child a short letter to be delivered by the father, which he may be able to fall back on in the event of difficulties with the child and her acceptance of the situation.

Post Script

The father collected the child, and in circumstances that are not clear the child ended up at the mother's home that evening. The police became involved and the child returned or was returned to the father. Mother's counsel invited Williams J to reconsider his decision, and the judge refused. Counsel for the father asked for a Prohibited Steps Order, which was also refused as it did not appear to the judge that the mother initiated the situation.

Ms Baker for the mother makes an application for permission to appeal:

a. The hearing was in breach of the mother's right to a fair hearing. Rejected by Williams J.

b. The child's wishes and feelings were not obtained. Rejected- it was inappropriate to seek further evidence of the child's wishes and feelings due to the distress she was feeling around the conflict.

c. Leaving future contact solely to the discretion of the father and Ms Ware is draconian and damaging. The level of restriction is not justified. The judge felt there needed to be an end to litigation and a timescale for a review date does not focus on the child's needs. The judge reserved any future hearing to himself and has not placed a bar on the parties' ability to make further applications.

d. The court should grant a certificate pursuant to s. 12 Administration of Justice Act 1960 as the issue of whether a court should ever force a litigant to represent themselves where their representative falls ill is of significant public importance. Rejected- the judge thought this was a fact specific decision and not an important point of principle.

Summary by Harriet Dudbridge, barrister St John's Chambers

Read the full judgment of S (Parental Alienation: Cult: Transfer of Primary Care) [2020] EWHC 1940 (Fam) on BAILII